Amendment Power Research Articles

Anayasa Değiştirme İktidarının Sınırlılığı ve Meşruluğu

The powers that write constitutions from the very beginning are the constitution-making powers. It is not possible to make a new constitution when there is a constitutional order and an existing constitution. Especially the new constitution discussions that have been on the agenda frequently lately do not seem possible since the continuation of the existing constitution is in question. During an existing constitution and constitutional order, the constitution may undergo partial or complete changes. A complete change may have been permitted in a constitutional text and this authority may have been used by the amending power. This situation cannot be considered a new constitution under all circumstances. What is important here is the purpose and intention of the amending power in making the change. If this change in question is not made with the aim of establishing a new constitutional order, it is nothing more than the use of the amending power. However, if it is made with the aim of establishing a new constitutional order, the limit of the amending power will be exceeded and the amending power will attempt to transform into the constitution-making power. Considering that the amending power is a limited constitutional authority originating from the constitution, the change it will make should not create a new constitutional order and constitution. Within the scope of the study, the issue of the authority of the constitutional amendment power being a constitutional and limited authority will be discussed. The necessity and legitimacy of the limitation of the constitutional amendment power in terms of the constitution-making power being a constituent authority and the continuation of the constitutional order it has established will be examined. Keywords: Constitutional amendment, constituent power, limitations of the constitutional amendment power

DEMYSTIFYING THE DOCTRINE OF BASIC STRUCTURE

The doctrine of Basic Structure is a constitutional principle which asserts that certain fundamental features of the Indian Constitution cannot be amended by the Indian Parliament, even if the amendment process provided in the Constitution is followed. This principle has been a subject of much debate and controversy in the legal and political circles of India. This paper seeks to demystify the doctrine of Basic Structure by providing a comprehensive overview of the judgment delivered in Kesavananda Bharati v. State of Kerala. The paper examines the various elements that constitute the Basic Structure of the Indian Constitution, including the supremacy of the Constitution, the rule of law, democracy, secularism, federalism, and the protection of fundamental rights. Furthermore, the paper highlights that there was no common ground on the grounds for limitation on the power of amendment between on one hand Chief Justice Sikri, Justices Shelat, Grover, Hegde, Mukherjea and Reddy and on the other Justice Khanna and that the question “what is the ratio of the Kesavananda judgment?” has never been answered.

Unamendable Provisions in The 1945 Constitution To Limit The Power Of Constitutional Amendment in Indonesia

Unamendable Provisions in The 1945 Constitution To Limit The Power Of Constitutional Amendment in Indonesia

Anayasa Değiştirme İktidarının Kötüye Kullanılmasını Önlemeye Yönelik Anayasa Değişikliği Usulünün Farklılaştırılması

Constitution-making powers impose limitations on their power to amend the constitution in the constitutional texts they prepare. These limits are intended to prevent the differentiation or abolition of the basic philosophy of the constitution and the constitutional order established by the power to make the constitution. These limits, which are brought in order to prevent the constitutional amendment powers from making changes other than their purpose, are realized by further protecting the principles and values that are given special value in the constitutions of some countries and that constitute the basic philosophy of the constitution. In other words, some provisions that constitute the basic principles and values of the constitution are subject to a different amendment procedure compared to other provisions of the constitution. This differentiation procedure includes additional conditions such as a qualified majority, a referendum, or the passage of a certain period of time in the amendment process. In this study, the differentiated constitutional amendment procedure and whether these procedures have an effect on the abuse of constitutional amendment power have been examined. Keywords: Constitutional amendment power, constitutional amendment procedure, differentiated constitutional amendment procedure, abuse of constitutional amendment power.

Beyond Invalidation: Unorthodox Forms of Judicial Review of Constitutional Amendments and Constitution-amending Case Law in Colombia

Judicial invalidation of constitutional amendments has garnered the attention of scholars in the last few years. Questions like whether and how a court should quash an amendment are at the forefront of contemporary comparative-constitutional-law and constitutional-theory inquiries. This excessive focus on annulment, however, has neglected some other nonconventional forms of judicial involvement regarding amendments. Taking Colombia as a case study, this article shows that the Constitutional Court has also had the power to initiate amendments, define their content, rewrite their text, and promulgate them. As these novel judicial interventions that go beyond invalidation resemble the prerogatives commonly vested on the amendment power, this research terms them ‘constitution-amending case law’, offers an in-depth exploration of them, and proposes a typology of such a jurisprudence. Lastly, the article ends with a cautionary note about the challenges this type of constitution-amending case law faces from the perspective of democracy and democratic backsliding.

Flexible constitutions and transitional justice, questioning the use of the amendment power in transitional justice contexts

This paper discusses the tension between the constitutional amendment power and transitional justice. This controversy takes place in contexts where transitional justice institutions are introduced with the aim of strengthening other democratic institutions. The issue under consideration is the possibility of an undemocratic use of the amendment power under the veil of transitional justice and the response of Constitutional Courts to this use. This risk is associated with the resistance of Constitutions to change, a risk that increases when the Constitution is more flexible. The Colombian case illustrates this discussion and allows us to identify a response from the Constitutional Court to this use.

Thermochemical valorisation of waste: Pyrolytic conversion of horse manure

The efficient and sustainable disposal of waste represents one of the major challenges for the human beings in the next future. The thermochemical conversion of livestock manure to biochar has received much interest thanks to its greenhouse gases extenuation and amendment power. In this study, horse manure was processed under pyrolytic condition at different temperatures, heating rate and residence times. In the first phase, a set of preliminary analysis aimed to assess the physical and chemical properties of the horse manure were carried out. Analogously, after the pyrolysis, the biochar was analysed both from the chemical and physical point of view. The results showed that the major impact on biochar yield (average −32%), pH (average + 40%), SSA (average 27.8 m 2 /g), PAH content, C (average + 37.4%) H (average −53.1%) N (average −15.5%) S (average −65.9%) O (average −37%) content was due to the HHT (highest heating temperature). Residence time (RT) and heating rate (HR) do not display a noticeable trend for most of the parameters. This analysis permitted to assess a range of pyrolysis parameters to treat this kind of biomass: 600°C (HHT), 10 °C/min (HR) and 2h (RT) , in order to comply with EBC (European Biochar Certification) standard.

Unimplementable by design? Understanding (non‐)compliance with International Monetary Fund policy conditionality

AbstractWhy do governments fail to implement policy commitments in contractual agreements with international organizations? While scholars have scrutinized domestic factors as obstacles to compliance, we argue that reform programs may beunimplementable by design. We study this hypothesis in the context of International Monetary Fund (IMF) programs, in which borrowing countries must commit to far‐reaching economic policy reforms for access to credit. We collect detailed compliance data on individual policy conditions to assess the determinants of compliance failures of IMF programs from 1980 to 2009. Controlling for a host of borrower‐specific variables, features of the loan, unexpected shocks during implementation, donor influence, and bureaucratic interest, we find that the number of conditions is a robust predictor of implementation failure. Our theoretical explanation for these findings is that over‐ambitious program designs are the result of intra‐organizational bargaining within the IMF bureaucracy. While an area department within the IMF drafts the initial reform program, functional departments use their amendment power to include policy conditions that they care about, without due consideration of local circumstances, which leads to over‐ambitious programs. These findings have important implications for theories of compliance as well as for policymaking in international organizations.

We the people: federalism and constitutional reform

It was not by chance that the power of amendment was born with the first democratic and federal constitution in history. Its express recognition arose not only because of tensions between the minority and the majority, but also because of the need to articulate a formula of understanding between the peoples of the states and the federal nation. This latter perspective is what this article examines, from two fundamental axes. The first is based on the idea the constitutional recognition of the power of amendment replaces the classical right of rebellion - which became a right to secession - of member states with a 'constitutional right to block reform', one of the characteristics of federal states. The second axis of analysis is linked to the affirmation that the state is a reality that precedes and conditions the constitution as a law, which is why implicit limits may be inferred to the power of amendment from this pre-existence.

Amending by interpreting: the constitutional jurisdiction as amendment power

The way in which the tension between the vocation of endure of the constitutions and the need to adapt to the socio-political changes in their environment has been reconciled by the institutionalisation of their change through the procedures of constitutional reform. But there is another way to do that: the silent constitutional reform practiced by constitutional courts when they interpret its precepts. This question raises the difficulty of identifying in which cases the constitution interpretation by constitutional judiciary is actually a silent constitutional change. In this paper, the author argues that the literal text of constitutional provisions is the only certain border between interpretation and the silent constitutional mutation by judiciary, and the institutionalisation of change through formalised processes of constitutional reform is the only democratic way to resolve the tension between durability and change.

Amending by interpreting: the constitutional jurisdiction as amendment power

The way in which the tension between the vocation of endure of the constitutions and the need to adapt to the socio-political changes in their environment has been reconciled by the institutionalisation of their change through the procedures of constitutional reform. But there is another way to do that: the silent constitutional reform practiced by constitutional courts when they interpret its precepts. This question raises the difficulty of identifying in which cases the constitution interpretation by constitutional judiciary is actually a silent constitutional change. In this paper, the author argues that the literal text of constitutional provisions is the only certain border between interpretation and the silent constitutional mutation by judiciary, and the institutionalisation of change through formalised processes of constitutional reform is the only democratic way to resolve the tension between durability and change.

On ‘legal continuity’ in the post-sovereign model of constitution-making: three problems

One key notion in the post-sovereign paradigm of constitution-making is the idea of ‘legal continuity’. In The Adventures of the Constituent Power: Beyond Revolutions?, Andrew Arato states that this paradigm emerges from an ‘empirical pattern’ marked by legal continuity throughout transitions from old legal systems to new ones. This would imply that it is possible to conceive of a ‘constituent power’ under the law, i.e., without producing legal ruptures. In this work, I will show that there are three problems concerning the idea of ‘legal continuity’ in this context: 1) a contingent obstacle for legal continuity in a ‘strong’ sense; 2) some conceptual uncertainties regarding the scope of the constitutional amendment power; and, 3) a conceptual inconsistency in the results of this legal continuity, related to the effective emergence of a new legal order.

Constitutional replacement doctrine

The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.

Constitutional replacement doctrine

The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.

The Eighth Amendment Power to Discriminate

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia. While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

Limited Constitutional Amendment Powers in Austria?

Limited Constitutional Amendment Powers in Austria?

Unconstitutional Constitutional Amendments: Between Contradiction and Necessity

Abstract In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.

The Limits of Amendment Powers

The Limits of Amendment Powers

Constitutional Unamendability – Four Observations

Abstract This is a response to the contributions of Professors Lech Garlicki and Zofia A Garlicka-Sowers, Vicki C Jackson, Sabrina Ragone and Adrienne Stone, in a book symposium on Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017).

Resenha: Unconstitutional Constitutional Amendments: The Limits of Amendment Power (Oxford University Press, 2017), de Yaniv Roznai

Resenha do livro "Unconstitutional Constitutional Amendment: The Limits of Amendment Power, de Yaniv Roznai (Oxford Univeristy Press, 2017).